Responding to Divorce Proceedings

From Clicklaw Wikibooks
Revision as of 11:27, 14 November 2018 by Dial-A-Law (talk | contribs)
Jump to navigation Jump to search

This script will be helpful if your spouse is about to begin divorce proceedings, or if you’ve already been served with divorce papers. In most cases, you’ll want to hire a lawyer to represent you, but this script should give you a general understanding of your situation. You have only a limited time to respond to the divorce papers.

This script only applies to married spouses. Unmarried spouses do not need to get a divorce.

What court forms are used to sue for divorce?[edit]

The document you’ll receive (or have already received) is called a Notice of Family Claim. Your spouse, the person who sued, is the claimant. You are the respondent.

The claimant must arrange for personal service of the Notice of Family Claim on the respondent. This means that the Notice of Family Claim must be delivered to you in person by someone other than your spouse. If you’re not available to receive the papers or the claimant has serving you personally, they can ask the court to serve you substitutionally by, for example, leaving the papers at your last known address, with your close relatives, or in your mailbox.

Read the Notice of Family Claim carefully. It states the orders that the claimant wants the court to make. Whether and how you respond to the Notice of Family Claims depends on the orders the claimant is asking for and whether you agree with the claims or not.

Consider getting a lawyer[edit]

Because the claims in the Notice of Family Claim could significantly affect your rights, you should consider asking a lawyer to review them with you and explain exactly what orders your spouse is seeking.

There are strict time limits to respond[edit]

You must respond to the Notice of Family Claim within 30 days of the date you were served by filing a Response to Family Claim in court and serving the filed Response on the claimant by ordinary service. It is very important to do this if you disagree with any of the orders the claimant is asking for. If you don’t respond, the court can make the orders your spouse is asking for without any further notice to you.

Ordinary service means mailing or faxing (or sometimes emailing) a document to the claimant’s Address for Service, which can include a fax number for service and an email address for service. The claimant’s Address for Service will be set out in their Notice of Family Claim.

What’s in the Notice of Family Claim?[edit]

The Notice of Family Claim gives the court basic information about you and your spouse, and the details of your marriage and separation. The schedules to the Notice of Family Claim describe the orders your spouse is asking the court to make. At a minimum, this will be an order for divorce, but your spouse can also ask for orders about the parenting of your children, spousal support, child support, the division of family property and family debt, costs, and other subjects.

The reason why your spouse is asking for a divorce[edit]

The Notice will state the reason your spouse is seeking a divorce, such as a one-year separation. If you don’t dispute the reason, you might not object. On the other hand, if your spouse is claiming adultery or cruelty and those claims aren’t true, you will probably want to object. For information on the legal basis for divorce, check script 120 called “Requirements for Divorce and Annulment”.

Consider the claims carefully[edit]

The claimant’s claims are the orders your spouse wants the court to make. If your spouse is seeking sole custody of the children under the Divorce Act, do you feel that joint custody is better, or should you have sole custody? If property is to be divided, do you want half or more than half of the family property and pension? Is there a reason to share your spouse’s excluded property? If you dispute any of the claimant’s claims, you must do so in a Response to Family Claim, which is explained a little later. If you want to make claims of your own, you must do so in a Counterclaim, also explained later on in this script.

What if you don’t agree with what the Notice of Family Claim seeks?[edit]

You should file a Response to Family Claim, which tells the court what claims you agree with and which you oppose. But filing a Response to Family Claim changes the proceeding from an uncontested divorce proceeding which doesn’t require an appearance before a judge, to a contested divorce. And a trial may be necessary if you can’t settle the dispute.

What if you want to make your own claims?[edit]

If you have claims of your own that you want to make, for example about the parenting of your children, child support, spousal support, the division of property and debt, or another order, you must file a Counterclaim. The Counterclaim says what orders you want the court to make. Just like the Response to Family Claim, you must file and serve the Counterclaim on the claimant within 30 days after being served.

What’s a judicial case conference?[edit]

You or the claimant can schedule a judicial case conference (JCC) after you have filed and served a Response to Family Claim or Counterclaim. A JCC is an informal meeting with a judge or master to talk about the claims each of you has made, see what can be agreed to, and talk about how the claims will be resolved. JCC is held in private and without prejudice. This means that each of you can make settlement proposals at the JCC without being held to your proposal later on, if you don’t reach a settlement.

The JCC is a great chance to tell the judge and the claimant what you really want[edit]

Everything you say at a JCC is confidential. It can’t be repeated outside the meeting room or used later, so speak your mind and explain what orders you’re looking for and why. The judge or master will not make any decisions, unless you and your spouse both agree. But the judge or master can make procedural orders, such as when financial documents should be exchanged and the dates for the trial.

When will the divorce be granted?[edit]

If the claim for divorce is based on one-year separation, the divorce order can be made any time after the one-year period is over. If the claim is based on cruelty or adultery, the order can be made at any time. No matter what the claim is based on, the court must be satisfied that adequate arrangements have been made for the financial support of any children before it can make the divorce order.

Although the divorce order can be made before all the issues are resolved, the court will usually be hesitant to make a divorce order before everything is resolved, without a very good reason for doing so.

What is an interim application?[edit]

It can take a year or more from the time the Notice of Family Claim is filed to have a trial, if a case cannot be settled. Before the trial, you or your spouse may need the court to make temporary orders about important issues, such as the payment of child support or spousal support, where the children will live, or who will live in the family home. These are called interim orders. They are made if one or both of you apply to the court. That’s called an interim application. Interim orders last until another interim order is made or until the final order ending the case is made at trial or by agreement.

Interim applications are made by filing a Notice of Application (a court form which explains the orders you want the court to make and sets the date for the hearing of the application) and a supporting affidavit (a sworn statement describing the basis for the application). The other spouse will have the opportunity to respond. Typically, interim application hearings take anywhere from 15 minutes to 3 hours or more, depending on the circumstances.

Interim applications should be taken very seriously as interim orders are often influential in the final outcome of the case. Script 112 on “Applying for an Interim Order in a Family Law Case in the Supreme Court” has more on this.

Each time you go to court, it costs time and money[edit]

The more you can agree on things with your spouse, the easier it will be for each of you. Try to save interim applications for really important problems, and always (if you can) see whether you can reach an agreement about the interim application before going to court. If you need help talking with your spouse, you can contact a mediator. Script 111 on “Mediation and Collaborative Settlement Processes” has more on mediation.

Can you object to a divorce?[edit]

You can object to a divorce, but you’re not likely to succeed. Most of the time, the judge will make a divorce order as long as the basis for the divorce is proven, whether you want it or not. Rarely, a judge may refuse a divorce, for example, if the divorce means the termination of pension benefits a spouse is receiving or if adequate arrangements have not been made for the support of any children.

When does the divorce order take effect?[edit]

Divorce orders take effect 31 days after the date the order is made, unless the judge says it will take effect sooner. The delay is to allow a spouse to appeal the divorce. Appeals like these are very rare.

What are your rights after the divorce order is made?[edit]

If your divorce order doesn’t cover the division of property or debt and you didn’t claim a division of assets in your Notice of Family Claim or Counterclaim, you have two years after the date of your divorce to make a claim under the Family Law Act. The same deadline applies to seeking spousal support for the first time under the Family Law Act.

But divorced spouses may be able to seek spousal support under the Divorce Act outside of this two-year limitation period. You should see a lawyer about whether you can do this.

Divorced spouses can always claim spousal support under the Divorce Act, no matter how long they have been divorced. Divorced spouses can always make a claim about children, such as claims for custody (or guardianship and parenting arrangements under the Family Law Act) or child support, as long as the children qualify as “children of the marriage” under the Divorce Act or as “children” under the Family Law Act.

More information[edit]

[updated October 2018]

The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye, and edited by John Blois.

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.